Disparate Impact Liability Undermines Rule of Law and Should Be Constitutionally Constrained
Source: https://www.facebook.com/americanspectator/. "DOJ and Thomas Sowell: Disparate Impact Is Often Unconstitutional | The American Spectator | USA News and Politics." June 13, 2026. spectator.org
The Gist
The author argues that current disparate impact rules are unfair because employers can follow all the rules equally but still get sued later if the results don't come out statistically even between racial groups. This forces companies to make hiring decisions based on race to avoid lawsuits, which is the opposite of what anti-discrimination law should do.
Conclusion
The DOJ's new opinion constraining disparate impact liability is correct because disparate impact often violates constitutional principles and undermines the rule of law
Premises
- Disparate impact liability works retroactively, making it impossible for employers to know the rules in advance
- Rule of law requires that rules be known in advance, but disparate impact determinations happen after the fact based on statistical outcomes
- Disparate impact forces employers to engage in race-based decision-making to avoid liability, creating the very discrimination it aims to prevent
- Employers can treat all applicants equally and still face disparate impact violations if outcomes statistically favor one group over another
- The DOJ's three proposed constraints (job-relatedness requirement, robust causality requirement, and alternative practice burden) properly limit disparate impact liability to cases of actual intentional discrimination
Assumptions
- Equal processes and equal outcomes are mutually exclusive - you cannot have both simultaneously
- Statistical disparities in outcomes do not necessarily indicate discrimination
- Retroactive legal determinations are inherently harmful to the rule of law
- Race-conscious hiring practices to achieve statistical parity constitute discrimination
- Thomas Sowell's analysis of rule of law and cosmic justice is correct